Employers should seriously consider appointing an independent investigator when they receive allegations of sexual harassment following the recent case of Kerkofs v Abdallah (Human Rights) [2019] VCAT 259. In that case, the Victorian Civil and Administrative Tribunal (VCAT) found an employer vicariously liable for sexual harassment by one employee towards another. VCAT ordered that the accused perpetrator and the employer, Parker Manufactured Products (Company), were jointly liable for the sexual harassment as the Company failed to carry out a ‘proper and independent investigation’ into the complaint.
Background
The complainant was a 20-year-old employee who made a complaint of sexual harassment following several incidents with a male colleague. The complaints included that he:
- touched her inappropriately at work by massaging her shoulders and neck uninvited;
- called her names at work such as sexy, baby and honey;
- showed her a fake Facebook page which he used to communicate with young girls;
- made inappropriate comments about her body such as commenting on her bottom when she bent over; and
- drove her home when she was unwell after work and touched her inappropriately in the car. He then helped her into her home, got into bed with her and tried to take off her bra and touch her breasts, saying he was “horny”’.
When the employee made the complaint to her employer, they failed to hire an independent investigator. Rather, a director of the company undertook a three day ‘cross-examination’ of the complaint and did his own ‘googling on the internet about sexual assault’. The directors then dismissed the claim and alleged that the complainant had made up the claim for money or to get time off work.
The complainant then left the company.
Judgment
Vice President Judge Harbison found that the allegations of sexual harassment and assault were substantiated. The accused employee was a favoured employee in a position of authority over the complainant who was young and starting employment in a new country. The conduct constituted unwelcome conduct of a sexual nature within the meaning of section 92 of the Equal Opportunity Act 2010 (Vic) (the Act).
Pursuant to section 109 of the Act, an employer will be found vicariously liable if an employee is found to have contravened section 92. However, there is an exception under section 110 if the employer took reasonable precautions to prevent the employee from contravening the Act. In this case, the judgment found that the company took no such reasonable precautions and as such, was vicariously liable.
Quantum of damages
Judge Harbison accepted that the complainant had suffered significant anxiety and distress and that the harassment had caused a long-term condition of hyper-vigilance and lack of concentration. Consequently, the complainant was awarded $130,000 for general damages (noting that a WorkCover claim was also accepted).
Judge Harbison was critical of the company’s failure to undertake an independent investigation. It held that the ‘cross-examination’ for three days by a director was inappropriate as it was gruelling, asked questions about her personal life (such as her relationships and health) and drew unsubstantiated conclusions. Judge Harbison expressed concern that the director chose to rely on his own unreliable ‘googling’ as opposed to seeking expert advice. The company also breached confidentiality by placing the employee’s claims on the company intranet to be viewed by any staff member.
As a result, Judge Harbison ordered the employer to pay an additional $20,000 in aggravated damages.
Lessons for employers
The judgment reflects a growing intolerance for sexual harassment in the workplace, and an expectation that complaints of sexual harassment will be promptly and independently investigated. Previously, courts generally awarded between $12,000 and $20,000 for sexual harassment claims. However, more recent judgments have included higher damages.
This presents an important lesson for employers that failure to prevent and respond to sexual harassment claims will be scrutinised. Having a policy on harassment is not enough. In this case, the employer’s policy on harassment was given little weight as it was not put into practice and a culture of accepting inappropriate behaviour including at the leadership level persisted.
The case also has interesting implications for schools and universities in relation to child abuse claims or abuse alleged by students. Changes in child safety legislation are reversing the onus so that institutions must demonstrate that they took steps to prevent abuse. Otherwise, institutions risk being held liable for abuse perpetrated by their employees, volunteers or agents.
Next steps
As stated by Judge Harbison, courts are focusing on the need “to eliminate sexual harassment to the greatest extent possible in the workplace”.
It is important that employers and schools are prepared for this and we recommend taking the next steps below.
- Start at the top – this recent case demonstrates the importance of strong leadership on sexual harassment at an executive and board level. It is important your board receives training on its obligations.
- Put your policy in practice – as outlined above, a policy is not enough. Policies need to be reflected in the culture of the organisation and must include a fair investigation process and confidentiality requirements.
- Seek advice and support – employers who attempt to manage a complaint entirely internally can find themselves in trouble if the investigation is not independent or they rely on inaccurate legal information.
How we can help
Moores has extensive experience in supporting employers and service providers to conduct investigations and effectively respond to complaints. If you would like assistance, please do not hesitate to contact us.